HOME DOC CORP v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

HOME DOC CORP., Appellant, v. CITY OF NEW YORK, Respondent.

Decided: August 05, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, NANCY E. SMITH and THOMAS A. ADAMS, JJ. Stephen E. Pearlman, Flushing, N.Y. (Kathy Lane of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Alan G. Krams of counsel), for respondent.

In an action to recover damages for the wrongful demolition of a building, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated August 16, 2001, which denied its motion for summary judgment on the issue of liability and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Queens County, for a trial on the issue of damages.

The plaintiff, Home Doc Corp., held a valid mortgage on certain real property in Brooklyn.   The plaintiff commenced a foreclosure action on the mortgage in October 1997 in which it named and served the defendant City of New York as one of the defendants.   The plaintiff filed a notice of pendency in the office of the Kings County Clerk on October 28, 1997.

On June 23, 1998, while the foreclosure action was pending, the defendant inspected the premises and recommended demolition.   In October or November 1998, the defendant demolished the subject premises, without giving the plaintiff any notice of its intention to do so.

 As the defendant correctly concedes, the Supreme Court erred in denying the plaintiff's motion for summary judgment on the issue of liability.   Generally speaking, it is a violation of due process to demolish a building without giving notice and an opportunity to be heard to a party that has a valid interest in the premises (see Calamusa v. Town of Brookhaven, 272 A.D.2d 426, 427, 708 N.Y.S.2d 317).   Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by presenting sufficient evidence that it had a valid mortgage on the premises and the defendant had knowledge of the mortgage (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In response, the defendant failed to raise a triable issue of fact that notice was not required because the building posed an immediate peril to the health and safety of the community at large (see Calamusa v. Town of Brookhaven, supra;  cf.  Merino v. City of Middletown, 272 A.D.2d 454, 708 N.Y.S.2d 328).   Accordingly, the plaintiff's motion for summary judgment on the issue of liability should have been granted, the defendant's cross motion for summary judgment dismissing the complaint should have been denied, and the matter must be remitted to the Supreme Court, Queens County, for a trial on the issue of damages.

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